Monthly Archives: January 2014

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Partner Nicole Brown obtained a defense verdict in the Southern District of New York. In the case of Sachs v. Musa, et al., the plaintiff was a patron of a midtown Manhattan bar when she claims that the manager and another patron assaulted and battered her and that the responding officer used excessive force when arresting her. The defendants disputed the plaintiff’s version of events contending that the plaintiff was intoxicated; was the initial aggressor; that the manager restrained her solely in self-defense; and that there was no excessive force. The plaintiff alleged a sprained left hand, a fractured left patella and cervical spine injury that resulted in surgery. Her medical records contradicted the majority of these claimed injuries. After seven days of trial, the jury returned a defense verdict.

Often times, plaintiffs will provide vague, non-specific and/or inaccurate descriptions of where the alleged accident occurred. Such descriptions can provide a basis for dismissal of their case.

Guillermo Robles claimed that he tripped and fell because of a dangerous condition in the courtyard of a Housing Authority complex where he lived. In his notice of claim Robles alleged that he tripped on a raised concrete perimeter while walking through the courtyard and during his § 50-h hearing, he identified a specific tree well as being the location of his accident. However, after commencing suit, Robles served a bill of particulars in which he identified a different tree well in a different area of the courtyard as the accident location. Once deposed, he reverted back to the original tree well as the site of his accident.

In its summary judgment motion, the Housing Authority argued that it had been prejudiced by the ever changing accident location and that Robles was improperly attempting to feign an issue of fact by altering his testimony. Despite these discrepancies, the lower court denied the motion. In reversing the decision on appeal, a divided First Department noted that Robles provided a vague description of the accident location in his notice of claim and failed to describe the location with sufficient particularity. The court further emphasized that Robles’ contradictory accounts of where the accident occurred obscured the correct location of the accident, further rendering the notice of claim defective, thereby prejudicing the Housing Authority.

Special thanks to Alicia Sklan for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com.

Partner Bob Cosgrove and associate Colleen Hayes obtained a favorable result through trial in Philadelphia. In the case of Charles Whalen v. Cano, et al., the plaintiff was a passenger in a motor vehicle that was rear-ended by the defendant Cano. The plaintiff alleged a torn rotator cuff, left knee meniscal tear and discectomy as a result of the accident. The pre-trial, non-negotiable, demand was $475,000. After four days of trial, including the cross-examination of the plaintiff, the plaintiff accepted $150,000.

WCM Partners Bob Cosgrove and Cheryl Fuchs along with associate Adam Gomez were able to obtain from New York’s Court of Appeals, NY’s highest court, a unanimous affirmance of the dismissal of $100,000,000 in construction defect damages. In the case of Oyster Bay v. S. Zara, et al., back in the 1970s, the New York Counties of Nassau and Suffolk (i.e. Long Island) decided to embark upon a major sewer construction project. Any number of contractors were hired to tear up roads and lay down pipes. The work continued until the mid 1980s.

In approximately 2009, the towns where the work was done began to receive complaints that the roads where the pipes had been laid had sunk into the ground and otherwise suffered problems. The townships, including lead plaintiff Oyster Bay, then began a series of lawsuits against any number of defendants.

The obvious problem that the townships faced was the statute of limitations, since the work ended many, many years ago. To get around this problem, the townships pleaded a continuing public nuisance cause of action. The trial court dismissed the complaints and the dismissal was twice affirmed by the Second Department, an intermediate court of appeals. NY’s Court of Appeals then took up the case. In a lengthy decision (with a concurring opinion), the Court unanimously affirmed the dismissal. Two issues were addressed by the Court.

First, the Court was asked to determine whether the townships only had six years after “substantial completion” of the work to file a lawsuit. The townships argued that they were not bound to the substantial completion rule because they were not parties to the contract. Five members of the Court of Appeals disagreed with that argument and instead held that because the townships were beneficiaries of the contract, they had six years from “substantial completion” of the work to commence defective construction (and resulting property damage) claims.

Second, the Court, in a case of first impression, had to specify what the elements of a continuing public nuisance are. All members of the Court held that to make out a prima facie case of continuing public nuisance both the acts and the damages must be continuing. Here, the Court ruled that only the damages were alleged to have continued (as the acts were conceded by all parties to have ended in approximately 1986), and thus the tort could not be made out.

This decision is obviously welcome news for contractors and their insurers. If the Court had changed the law through this case, construction defect claims would have effectively been converted into endless long-tail exposure cases.

It seems obvious that store owners owe a duty to those that enter their stores. The real question in every case is whether the store owner breached that duty.

In Meduri v. Aldi, the plaintiff was helping her handicapped husband into a store when she tripped and fell in a marked handicapped zone due to a crack and elevation differential. Plaintiff filed a motion for summary judgment arguing that as a “business invitee,” the store owed her a duty of care and breached that duty due to “irregularities” in the handicapped zone. The court held that the store owed plaintiff a duty of care, but held that it was an issue of fact as to whether the store breached the duty since it was not clear whether the “irregularities” were “trivial.”

This decision makes clear that more often than not, courts will shy away from ruling on a “trivial defect.” Ultimately, it will likely be up to a jury to decide, and there is likely no easy way out early on.

By letter, Gutterman fired Attorney Frechtman, alleging a “belief” that Frechtman had failed to act in Gutterman’s best interest and had committed legal malpractice. Frechtman, a 60 year practitioner, took offense and sued Gutterman for defamation. The trial court dismissed the complaint of the unhappy lawyer. But Frechtman, pro se, appealed the dismissal to the First Department.

Parsing the dismissal letter, the First Department found the alleged defamatory statements constituted “opinions.” But the challenged statements, the Court found, were also protected by a qualified privilege (i.e. the right of a client to communicate freely with counsel about matter of common interest). See, Frechtman v. Gutterman (1st Dept., January 23, 2014).

Recently, in Roth v. Tarter Krinsky et al, WCM beat back an attorney’s defamation claim against his former law firm. Roth alleged that certain defamatory statements had been made about him to attorneys within the firm. New York City’s Civil Court found that Roth’s pleadings were not sufficiently specific and that the statements were protected by the common interest privilege. Attorneys and partners, the court reasoned, are free to discuss the conduct of lawyers at the firm – – unless the discussion is motivated by pure malice. The court found that Roth’s sweeping allegation of malice were insufficient to overcome the qualified privilege. Roth’s complaint was dismissed without leave to replead.

Thanks to Alison Weintraub for her contribution to this post. If you have any questions about defamation and slander lawsuits, please email Dennis Wade at dwade@wcmlaw.com.

We often think of Labor Law 240 as the “scaffold statute.” New York courts, however, are not satisfied with limiting liability to scaffolding or even “gravity” related situations. The reach of Labor Law 240 liability seems to expand further with each newly reported 240 case.

In Garcia v. Neighborhood Partnership Hous. Dev. Fund Co., Inc., one plaintiff was injured and another killed when a building partially collapsed. Plaintiffs moved for summary judgment on their Labor Law 240 claim. The First Department granted the motion, and stated that in a case of a permanent structure collapse, a plaintiff has to show that the collapse was “foreseeable.” The plaintiffs in Garcia established foreseeability based on an architect’s field report that documented unsafe conditions, and a New York City building violation resulting in a stop work order. This case emphasizes the importance of foreseeability and owner/contractor knowledge. Owners and contractors must heed warnings of building instability and hazards. If not, they will likely be on the losing end of a Labor Law 240 motion in the case of a partial building collapse.

Defendants often seek contribution and/or indemnification from other potential tortfeasors to lessen their potential liability for a claim. These two claims are based upon entirely distinct legal principles. A claim for contribution seeks just that from another defendant based upon the percentage of tort liability attributed to that party. Indemnification, on the other hand, seeks to pass on the entire damages to another more culpable party. A claim for indemnification can be based upon a contractual undertaking to hold another harmless. Alternatively, it can be based upon common law principles where a defendant is only liable vicariously for another party’s sole negligence.

In Konsky v. Escada Hair Salon, the tenant-hair salon commenced a third-party action for common-law indemnification and contribution after plaintiff slipped and fell at the hair salon. She claimed that she fell from a 7 1/2″ platform as she reached to hang her coat on an adjacent rack. The claim revolved not only around the platform but also the salon’s placement of a coat rack adjacent to it.

The landlord, Brighton Realty, moved for summary judgment on the third party claim seeking dismissal of both the contribution and indemnification claims. It argued that the tenant’s own negligence was the basis of plaintiff’s claim. The Second Department agreed to an extent.

The court held that since the predicate of common-law indemnity is vicarious liability without actual fault on the part of the proposed indemnitee, it follows that a party, who has itself actually participated to some degree in the wrongdoing, cannot receive the benefit of the doctrine. Here, the tenant’s liability was predicated on its own wrongful conduct in the placement of the rack, not on Brighton’s. Thus, it could not obtain indemnity.

On the other hand, the salon was entitled to pursue its contribution claim against the landlord to determine whether the platform was in a defective condition for which the landlord was responsible.

While the landlord was able to avoid potential indemnification liability, its motion did not achieve a total victory.

As a general rule, a property owner is not liable for the negligence of an independent contractor in the course of doing that for which he was hired to do. The rule is not without exceptions as the property owner in Eagle Truck Serv. V. Wojdalski found out.

The defendant Robb H. Inc. owned and leased commercial property to Eagle Truck Services for Eagle to operate an auto mechanic shop. According to the lease, Robb H. was responsible for installing and maintaining the roof of the premises. After the lease was signed, Robb H. commissioned bids from contractors to install a rubber roof. Robb H. selected defendant Wojdalski from a website of contractor listings and reviews. According to the testimony, the defendant did not read any reviews of Wojdalski, nor did he ask Wojdalski about prior experience before hiring.

A few months after Wojdalski was hired, a fire occurred on the roof of the building rented by Eagle. The Philadelphia fire department reported that the fire was caused by gas tanks left on the roof by Wojdalski. Eagle sued Robb H. and Wojdalski for damages.

Defendant Robb H. argued that he was not liable to Eagle under long-standing Pennsylvania law that protects property owners from an independent contractor’s negligence. However, the court disagreed and held that the claim falls under an exception to the rule to the extent it alleged that Robb H. negligently hired Wojdalski. Judge Messiah-Jackson of the Court of Common Pleas, Philadelphia County held that the defendants failed to exercise reasonable care to employ a competent roofer to do the work. As such, Robb H. was liable for the contractor’s negligence.

What is a plaintiff who slips on ice to do when notice is part of the proof burden? A plaintiff who admits that she observed the ice before she fell will have comparative negligence problems. A plaintiff who did not see it will have proof of notice issues. This conundrum leads to creative lawyering.

In Tompa v. 767 Fifth Partners, LLC, the plaintiff allegedly slipped on a thin sheet of ice near a fountain outside of the defendant’s building. She admitted that she did not see the ice before she fell. The defendant’s employees testified that they had inspected the area prior to the fall and did not observe any ice. With no potential for actual notice under these circumstances, the plaintiff turned to constructive notice.

The plaintiff alleged that water from the fountain’s reflecting pool was swept up in a gust of wind and carried over onto the plaza. The plaintiff argued that the defendant had constructive notice of a recurrent condition. In her theory, the spray of the fountain combined with the wind data for the time in question, should have put the property owner on notice.

While creative, the theory was short on factual or expert support. The First Department affirmed summary judgment holding that there was no evidence of actual or constructive notice. While the plaintiff’s ‘fluid dynamics’ theory of how the water got onto the plaza was intriguing, there were no proofs that the fountain was on, no evidence of recurring spraying, and no expert to substantiate the wind flow explanation. The fluid dynamics argument was beyond the experience and knowledge of the average jurist and, therefore, required expert testimony to support the hypothesis. Without such expert support, the Court held that the plaintiff’s theory was mere speculation.

In the end, the lack of notice could not be overcome even by creative argument.